United States v. Holland

UNITED STATES COURT OF APPEALS
for the Fifth Circuit

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No. 93-5268
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TERRANCE ROSHANE HOLLAND,

Defendant-Appellant.

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Appeal from the United States District Court
for the Eastern District of Texas
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(June 29, 1994)

Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.

DAVIS, Circuit Judge:

Terrance Roshane Holland challenges the sentence imposed by

the district court following his guilty plea. Because we conclude

that the district court properly considered Holland's juvenile

record in determining his criminal history score, we affirm.

I.

In June 1993, Holland pled guilty to knowingly and

intentionally possessing, with intent to distribute, five grams or

more of crack cocaine within 1000 feet of a playground in violation

of 21 U.S.C. §§ 841(a)(1) and 860. At his sentencing hearing,

Holland objected to the district court's use of his juvenile record

in determining his criminal history score under the Sentencing
Guidelines. The district court overruled Holland's objection and

sentenced him to 115 months imprisonment, to be followed by eight

years of supervised release.1

II.

Holland challenges his sentence to the extent that the

district court added four points to his criminal history score as

a result of his juvenile record. Holland argues that, because

Texas does not consider juvenile adjudications to be convictions,2

the district court erred in considering them in determining his

criminal history score. We review the district court's

interpretation of the Guidelines de novo. See United States v.

McCaskey, 9 F.3d 368, 372 (5th Cir. 1993), cert. denied, 114 S.Ct.

1565 (1994).

In calculating a defendant's criminal history score, U.S.S.G.

§ 4A1.2(d) provides that:

(1) If the defendant was convicted as an adult and
received a sentence of imprisonment exceeding
one year and one month, add 3 points under §
4A1.1(a) for each such sentence.

(2) In any other case,

(A) add 2 points under § 4A1.1(b) for each
adult or juvenile sentence to confinement of
at least sixty days if the defendant was
released from such confinement within five
years of his commencement of the instant
offense;

1
The district court determined that Holland's base offense
level was 25, and that his criminal history score was 16.
2
See P.G. v. State, 616 S.W.2d 635, 637 (Tex. App.--San
Antonio 1981, writ ref'd n.r.e.).

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 (B) add 1 point under § 4A1.1(c) for each
adult or juvenile sentence imposed within
five years of the defendant's commencement of
the instant offense not covered in (A).

In this context, the Guidelines specify that "[t]he term 'prior

sentence' means any sentence previously imposed upon an

adjudication of guilt, whether by guilty plea, trial, or plea of

nolo contendere, for conduct not part of the instant offense."

U.S.S.G. § 4A1.2(a)(1).

The question in this case is whether Holland's juvenile

adjudications are "adjudications of guilt" under § 4A1.2(a)(1).

Holland argues that they are not, because Texas "stops short of

actually adjudicating guilt and convicting a person who is brought

in under the juvenile justice procedures." The district court,

however, found that juvenile adjudications are the same as

convictions for purposes of the Sentencing Guidelines:

The Court finds that even though under Texas law the
purpose of juvenile adjudications is to avoid the taint
of criminality and to provide a program for treatment and
rehabilitation, the Texas law does provide for a finding
by the Court as to whether or not the juvenile engaged in
delinquent conduct.

Here, Mr. Holland was found to have been a child
engaged in delinquent conduct at that time. And under
4A1.2, that is essentially the same as being convicted of
an offense, in that his guilt was established at those
juvenile hearings.

In United States v. Giraldo-Lara, 919 F.2d 19, 22 (5th Cir.

1990), we held that a "deferred adjudication probation" entered by

a Texas court was an adjudication of guilt, and therefore, a "prior

sentence" under the Guidelines. We reached that conclusion even

3
though, under Texas law, the court made no finding of guilt in

entering a deferred adjudication probation.

In United States v. Ashburn, 20 F.3d 1336, 1341-43 (5th Cir.

1994), we addressed whether a conviction under the Youth Correction

Act, which was automatically set aside, could be considered in

arriving at a criminal history score. In holding that it could be

considered, we agreed with the District of Columbia Circuit that:

"If a juvenile offender turns into a recidivist, the case for

conferring the [set aside] benefit dissipates. Society's stronger

interest is in punishing appropriately an unrepentant criminal."

United States v. McDonald, 991 F.2d 866, 872 (D.C. Cir. 1993).

This reasoning is consistent with cases that have addressed a

court's authority to include juvenile records in criminal history

calculations. In United States v. Booten, 914 F.2d 1352, 1354 (9th

Cir. 1990), the court concluded that juvenile adjudications could

be considered:

Congress authorized the Sentencing Commission to enact
guidelines that would permit a trial judge to consider a
defendant's prior criminal conduct in making a sentencing
decision, notwithstanding the fact that the defendant may
not have been adjudged guilty of the prior act.

See also United States v. Bucaro, 898 F.2d 368, 370 (3d Cir. 1990)

("It is clear that under the federal sentencing guidelines, the

district court properly factored [defendant's] prior juvenile

delinquency adjudications into its calculation of his criminal

history category."); United States v. Chanel, 3 F.3d 372, 373 (11th

Cir. 1993), cert. denied, 114 S.Ct. 1107 (1994).

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 According to Holland's pre-sentence report, he committed the

instant offense on August 6, 1992. Under § 4A1.2(d)(2)(B), the

district court may look to any sentence--juvenile or adult--that

was imposed within five years of that date. The pre-sentence

report listed the following juvenile adjudications:

(1) 4/4/90: Burglary of a residence (1 year probation);
(2) 3/27/90: Burglary of a residence (1 year probation);
(3) 3/19/90: Burglary of a residence (1 year probation);
(4) 3/10/90: Burglary of a vehicle (1 year probation);
(5) 1/27/90: Possession of stolen property (1 year
probation);
(6) 8/24/89: Burglary of a vehicle (1 year probation).

Because all six violations fall within the five-year period

prescribed by § 4A1.2(d)(2)(B), the district court properly added

four points to Holland's criminal history score.3

III.

Because the district court properly considered Holland's

juvenile record in calculating his criminal history score, we

affirm the sentence imposed by the district court.

AFFIRMED.

3
Although § 4A1.2(d)(2)(B) allows one point to be added
for each prior sentence, § 4A1.1(c) provides that the total points
added cannot exceed four.

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